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CAUT Bulletin Archives

September 2005

Proposed Copyright Law Reflects Struggle Between Users & Owners

Bill C-60 favours the rights-owners’ view of copyright, but for the education & library sectors it still holds a measure of promise.

Canada’s slow moving copyright reform process took a lurch forward over the summer with the first reading of Bill C-60 — An Act to Amend the Copyright Act. The new legislation attempts to bring copyright law in line with modern information technology.

"C-60 is part of the long struggle between those who think the Copyright Act is a tool for private business and those who consider it a regulator of public good," said Ken Field, chair of CAUT’s copyright working group.

Field, a librarian at Trent University, has been involved in the issue since the last major round of copyright reform in the late 1980s.

"Corporate rights-owners in the publishing and entertainment industries want to shut down any use that they can’t charge for," Field said. "The education community needs legislation that enhances traditional forms of open sharing and free copying such as library lending and fair dealing."

Bill C-60 favours the rights-owners’ view of copyright, but for the education and library sectors it still holds a measure of promise.

"It could have been a lot worse’ is hardly a rallying cry, but the final bill represents a drastic improvement on the original parliamentary proposals," Field said. "It’s not acceptable, but we have to acknowledge that the copyright landscape is starting to shift."

Underlying this shift is the gradual decline in the traditional copyright dichotomy between users and creators of works of art and literature. As the publishing and entertainment industries amalgamate into fewer and fewer large entities, the individual artists upon whose creativity they depend are increasingly reluctant to let the corporations speak for them on matters of copyright.

Individual creators identify the Internet as a way directly to reach an audience and are reluctant to cede complete control of the medium to the corporate sector. While the interests of creators and users, such as educational institutions and libraries, are not identical, there is growing common ground and this new reality is reflected in C-60.

The bill’s main focus is the Canadian implementation of two World Intellectual Property Organization (WIPO) treaties. This is a long-standing demand of the publishing and entertainment industries, who see it as a crucial step in cementing their lock on the ownership and distribution of all digital information. Their hope is for legislation that will completely protect Rights Management Information (RMI) and Technological Protection Measures (TPMs) — the electronic code inserted in digital works to mark identity and prevent unauthorized reproduction.

For educators and librarians, implementation raises significant concerns. RMI can, through oversight or deliberate design, misidentify ownership or even claim the existence of copyright in a work for which no copyright resides. TPMs rarely distinguish between legal and illegal copying, preventing the pirating of a popular song for commercial gain but also the lawful copying of a portion of a journal article for private study, an activity allowed under the Copyright Act.

WIPO obliges Canada to broadly prohibit tampering with RMI and TPMs, but provides leeway for countries to adapt the treaties to their individual circumstances. Following the advice of educators and librarians — and over the protests of rights-owners — C-60 prohibits removal or alteration of RMI and TPMs, but only if done for the specific purpose of infringing copyright.

This is a subtle but important difference from a blanket prohibition because it allows users to amend RMI and circumvent TPMs for lawful purposes such as fair dealing and archival preservation. C-60 — to the horror of Hollywood — contains no ban on devices that facilitate alteration and circumvention, recognizing that there are legitimate reasons for such acts.

Another rights-owners’ demand was to increase Internet Service Provider (ISP) liability for copyright infringement occurring on their systems. Industry preference was for a draconian "notice and take down" regime that would compel ISPs to remove material from the Internet based on allegations of copyright infringement. Instead, C-60 contains a "notice and notice" system requiring ISPs to pass on to their clients any infringement concerns that rights-owners might wish to express.

While WIPO implementation and ISP liability did not pan out exactly as the entertainment and publishing industries hoped, they still have a robust presence in C-60. Rights-owners also achieved a crucial victory with the creation of a "making available right" that will assist their efforts to contain movie and music piracy.

Library and education communities can claim some solace in the fact that limitations were placed on the rights-holders gains, but on their own issues, the user community gained almost nothing.

Bill C-60 contains no mention of U.S.-style fair dealing for the purposes of education — the right to make multiple copies of material for classroom use (Canadian law allows teachers to only make single, dry-erase chalkboard copies). Nor does it propose a specific education amendment confirming that teachers and students can freely use material posted on the Internet. Instead, C-60 provides a limited right to use digital materials for distance education, but onerous time limitations and administrative requirements sharply undercut its usefulness.

Libraries argued for the right to treat digital and paper copies of material in the same manner for purposes of interlibrary loans. What they received was permission to digitize hard copy material for the purposes of interlibrary loans, but no right to lend material originally received in digital format.

A host of other issues raised by the user community, such as reform of statutory damages and crown copyright and limitations on the ability of "shrink wrap licenses" to negate statutory rights, received no mention at all.

"The entertainment industry has made gains in C-60, but for the first time they didn’t get every last thing they asked for," Field said. "It is a modest start but we have to recognize that legislators are realizing that copyright serves both creativity and use, not simply private business."

Committee hearings into C-60 are expected to start soon with the resumption of parliament in October.

Field speculated it’s unlikely the bill will be passed by this parliament, given the likelihood of an election in the near future. "CAUT is in this for the long haul," he said. "We will defend the modest gains made in C-60 and push aggressively for our issues, including fair dealing for the purposes of education, in the next reincarnation of the bill."